Citation Nr: 0907726
Decision Date: 03/03/09 Archive Date: 03/12/09
DOCKET NO. 07-26 737 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Whether new and material evidence has been received to lift
the bar on the former service member's eligibility for
Department of Veterans Affairs (VA) benefits based upon his
character of discharge.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
K.S. Hughes, Counsel
INTRODUCTION
The former service member served on active duty from
September 1990 to September 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2006 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
In September 1992, the former service member initially
applied for compensation benefits. Pursuant to a March 1993
Administrative decision, the former service member's
character of discharge was found to be a bar to receipt of VA
benefits. In requests received in January 2006 and October
2006, the former service member sought to reopen his claim
for compensation benefits. These claims will be adjudicated
as to whether new and material evidence has been received to
lift the bar to VA benefits based on the former service
member's character of discharge as that is a prerequisite to
determining whether service connection for a disability is
warranted.
Before the Board may consider the merits of a previously
denied claim, it must conduct an independent review of the
evidence to determine whether new and material evidence has
been submitted sufficient to reopen a prior final decision.
"[T]he Board does not have jurisdiction to consider a claim
which [has been] previously adjudicated unless new and
material evidence is present, and before the Board may reopen
such a claim, it must so find." See Barnett v. Brown, 83
F.3d 1380, 1383 (Fed. Cir. 1996). Further, if the Board
finds that new and material evidence has not been submitted,
it is unlawful for the Board to reopen the claim. See
McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Accordingly,
the matter appropriately before the Board is whether new and
material evidence has been presented to reopen the previous
finding that the former service member's character of
discharge bars him from receipt of VA benefits.
FINDINGS OF FACT
1. The character of the former service member's discharge
was determined to be a bar to receipt of VA benefits by
Administrative Decision dated in March 1993. The appellant
was notified of this decision and did not appeal.
2. Evidence received since the March 1993 decision is not
new and material.
CONCLUSION OF LAW
The March 1993 administrative decision by the RO is final,
and the evidence received since that time is not new and
material; the claim is not reopened. 38 U.S.C.A. §§ 5108,
7104 (West 2002); 38 C.F.R. § 3.156 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007). The
VCAA provides, among other things, for notice and assistance
to VA claimants under certain circumstances. VA has issued
final rules amending its adjudication regulations to
implement the provisions of the VCAA. See generally
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The
intended effect of these regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits or who attempts to reopen a previously denied
claim.
In order to be consistent with 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; and (3) inform the claimant about the information
and evidence the claimant is expected to provide.
The former service member was not provided sufficient notice
in compliance with the VCAA-more specifically, he was not
advised of the definition of new and material evidence, or of
the evidence needed to reopen the previous finding of his
character of discharge as is now required pursuant to Kent v.
Nicholson, 20 Vet. App. 1 (2006). The Board finds, however,
that remanding the appeal to allow the RO to issue the
appellant a totally compliant VCAA notification letter,
including notice in compliance with Kent, is not warranted.
First, prior to the October 2006 decision that is the subject
of this appeal (and apparently prior to the former service
member's appointment of a representative), the former service
member was notified in a February 2006 letter that he had
been notified in March 1993 that his discharge was a bar to
the payment of VA benefits, and that no further action would
be taken on his claim. Thus, the Board finds that the former
service member was clearly placed on notice that his
discharge was a bar to his claim and that this needed to be
corrected in order for him to be able to reopen a claim for
benefits.
In addition, as explained below, there therefore continues to
be no factual dispute with the relevant part of the former
service member's service, and new and material evidence has
not been received to contradict it. The Board finds that
there is no indication that providing the appellant with
notice would lead to facts that would change the outcome of
this appeal. See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
Further, the former service member was otherwise aware of the
evidence required to reopen the previous finding that his
character of discharge bars entitlement to VA benefits.
Specifically, both the March 1993 notice of the
Administrative Decision and the October 2006 notice that the
former service member's character of discharge constituted a
bar to payment of VA benefits notified the former service
member that he would need to request that the Service
Department Discharge Review Board change the character of his
discharge. In addition, the March 1993 notice also notified
the former service member that he could apply for correction
of military records through the Service Department Board for
Correction of Military Records. Both notification letters
also included the forms required for these requests. Based
on the evidence of record, the Board finds that the former
service member had actual knowledge of what evidence was
required of him to reopen the previous finding and he is not
prejudiced by the Board adjudicating his claim at this time.
See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007)
(VCAA notice errors are presumed prejudicial and require
reversal unless VA can show error did not affect the
essential fairness of the adjudication.) Further, neither
the former service member, nor his representative has
contended any notice error. As actual knowledge of the
former service member's procedural rights and evidentiary
requirements has been demonstrated, and as he has been
provided with a meaningful opportunity to participate in the
development of his claim, the Board finds that no prejudice
to the former service member will result from proceeding with
adjudication without additional notice or process.
The former service member's character of discharge was
originally found to be a bar to receipt of VA benefits in a
March 1993 Administrative Decision - the former service
member did not appeal that decision. As such, the decision
became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.
Pursuant to an applications submitted in January 2006 and
October 2006, the former service member seeks to reopen the
previous finding that his character of discharge bars his
receipt of VA benefits. Generally, where prior RO decisions
have become final, they may only be reopened through the
receipt of new and material evidence. 38 U.S.C.A. § 5108.
Where new and material evidence is presented or secured with
respect to claims which have been disallowed, the Secretary
shall reopen the claims and review the former dispositions of
the claims. Evidence presented since the last final denial
will be evaluated in the context of the entire record. See
Evans v. Brown, 9 Vet. App. 273 (1996). New and material
evidence means existing evidence that by itself, or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim.
38 C.F.R. § 3.156. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened, and it must raise a reasonable possibility of
substantiating the claim. Id. The credibility of new
evidence is to be presumed. See Justus v. Principi, 3 Vet.
App. 510, 513 (1992).
The evidence of record at the time of the March 1993 decision
included the former service member's service records. The
evidence received since the March 1993 decision includes a
statement from the former service member recalling a
stressful incident during his active duty service and a
Recommendation for Award based on the stressful incident
reported by the former service member.
Following a complete and careful review of the record, the
Board finds that some of evidence obtained since March 1993
is new, in that it was not previously before agency decision-
makers when deciding the original claim. The evidence,
however, is not material because it does not speak to an
unestablished fact necessary to substantiate the claim -
specifically, whether the former service member's character
of discharge has been upgraded to that of honorable service.
Consequently, the claim is not reopened and the finding that
the former service member's character of discharge bars him
from receiving VA benefits is continued.
ORDER
New and material evidence not having been submitted, the
former service member's request to reopen the previous
finding that his character of discharge bars him from VA
benefits is denied.
________________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs